NIRMALA MUKHARJEE Vs. STATE OF WEST BENGAL
LAWS(CAL)-2010-2-57
HIGH COURT OF CALCUTTA
Decided on February 02,2010

NIRMALA MUKHERJEE Appellant
VERSUS
STATE OF WEST BENGAL Respondents

JUDGEMENT

- (1.)Heard the learned Advocates for the parties.
(2.)The instant writ petition has been filed by a widow of a former Assistant Teacher of a Primary School, named Kayra Prathamik Vidyalaya, under Illambazar Circle. She is aggrieved by a Memo dated 25th August, 2009 issued by the Joint Secretary, School Education Department, Government of West Bengal in compliance with the order dated 2nd of April, 2009 passed by this Court in an earlier writ petition filed by her, being W.P. No.1595(W) of 2009 which was disposed of by Asim Kumar Banerjee, J. with the following order:
" THE petitioner's prayer for family pension is pending consideration before the Joint Secretary, School Education Department, Government of West Bengal as would appear from page 18 of the writ petition. THE Joint Secretary is directed to consider the said application in accordance with law and dispose of the same within a period of four weeks from the date of communication of this order. THE Joint Secretary is also directed to assign reason in case of refusal to be communicated to the petitioner within the stipulated period. THE writ petition is disposed of without any order as to costs."

By the impugned Memo dated 25th August, 2009, the Joint Secretary, School Education Department, Government of West Bengal has, in terms of the order of this Court reproduced hereinabove, observed, inter alia, that under the facts and circumstances the writ petitioner was not entitled to family pension.

The crux of the impugned Memo is based on the Joint Secretary's interpretation of Rule 30(c) of the Rules framed under Bengal (Rural) Primary Education Act, 1930 published under Notification No.2299 Edn.(P) dated 12th December, 1972. By referring to the said provision of law, the Joint Secretary has observed that a teacher appointed substantively under the Board prior to 1st April, 1968, shall have the option to continue to be governed under Rule 26 instead of Rule 27, provided he exercised his option to the Board to that effect within six months from the date of publication of these amendments in the Official Gazette. The Joint Secretary thereafter proceeded to observe that there was no available record to suggest that he (the concerned teacher) exercised option to come under Rule 27 instead of Rule 26, whereby family pension could be allowed to the family of the teacher who dies while in service after completing 20 years of qualifying service as prescribed in Rule 27(23) ibid.

(3.)For convenience, the relevant Rule, being Rule 30(c) is reproduced hereinbelow:
"A teacher appointed substantively under the Board prior to the 1st of April, 1968 shall have the option to continue to be governed under Rule 26 instead of Rule 27, provided that he exercises his option to Board to that effect within six months from the date of publication of these amendments in the Official Gazette."

A bare reading of the above-quoted rule makes it clear that a teacher appointed substantively under the Board prior to 1st April, 1968, shall have the option to continue to be governed under Rule 26, provided he exercised his option to the Board to that effect within six months from the date of publication of these amendments in the Official Gazette. The phrase, "instead of Rule 27" in the referred context, follows the phrase, "shall have the option to continue to be governed under Rule 26" and is not vice versa and would, therefore, mean that a teacher appointed substantively under the Board prior to 1st April, 1968, would be governed under Rule 27 automatically and the option to be governed was only in respect of Rule 26, which could be exercised by the concerned teacher within the time-frame stated in the said Rule.



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